People v. Luth

Case Date: 11/20/2002
Court: 4th District Appellate
Docket No: 4-01-0165 Rel

NO. 4-01-0165

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
                       Plaintiff-Appellee, ) Circuit Court of
                       v. ) Douglas County
GARY M. LUTH, ) No. 00TR2335
                      Defendant-Appellant. )
) Honorable
) Frank W. Lincoln,
) Judge Presiding.

JUSTICE TURNER delivered the opinion of the court:

In October 2000, the State charged defendant, Gary M.Luth, with the offense of driving with a blood-alcohol concentration of 0.08 or more (625 ILCS 5/11-501(a)(1) (West 2000)). InJanuary 2001, a jury returned a verdict of guilty. Thereafter,the trial court sentenced defendant to 30 days in jail, 18months' probation, along with over $600 in fines. On appeal,defendant argues the State's use of his serum blood-alcohol testresults failed to prove his guilt beyond a reasonable doubt. Weaffirm.

I. BACKGROUND

In July 2000, defendant received a uniform trafficcomplaint charging him with failure to reduce speed to avoid anaccident following a two-vehicle collision. The State, inSeptember 2000, charged defendant with failure to reduce speedand sought review of medical records for the possibility offiling additional charges. In October 2000, the State chargeddefendant with driving with a blood-alcohol concentration of 0.08or more, a Class A misdemeanor (625 ILCS 5/11-501(c) (West2000)), alleging he drove a motor vehicle with a blood-alcoholconcentration of 0.08 or above. In January 2001, the State movedto dismiss the count charging defendant with failure to reducespeed to avoid an accident, which the trial court granted. Thereafter, defendant's jury trial commenced.

Josh Huber testified that on July 23, 2000, he waspreparing to stop at an intersection in Douglas County whendefendant ran his motorcycle into the back of Huber's pickuptruck. Huber exited his vehicle and dialed 9-1-1.

Clinton Howard, a Douglas County deputy sheriff,testified he arrived at an accident scene on July 23, 2000. Hesecured the accident site and found defendant lying in thewestbound lane. After clearing the scene, he returned to thesheriff's office to finish the accident report. Deputy Howardlater received a call from the hospital indicating defendant'sblood-alcohol level measured 0.181. Hospital staff asked ifDeputy Howard was en route to hold a standard sample kit fordriving-under-the-influence cases. Deputy Howard indicated hedid not believe he could make it to the hospital before defendantunderwent surgery.

John Sanderson, an assistant phlebotomy supervisor atCarle Hospital in Champaign, testified he was on duty on July 23,2000, when defendant was transported as a trauma patient. Sanderson indicated he drew the standard blood panel, whichincluded testing a patient's blood-alcohol content, and sent itto the laboratory.

Bridget Wallace, a medical technologist, testified sheran a comprehensive panel on defendant's blood. The computer-generated report indicated the serum-alcohol level. On cross-examination, Wallace agreed serum blood is not the same as wholeblood. She testified whole blood separates into serum, the"clear yellowish portion" of the blood. Wallace also stated theserum-alcohol result in defendant's case was 0.181 grams perdeciliter of serum. She could only "assume" testing for substances in whole blood would yield a different result thantesting for substances in serum blood.

Dr. Sidney Rohrscheib, a general surgeon, testifieddefendant arrived in the emergency room, where standard bloodtests were performed. He stated he received defendant's resultsshowing a serum-alcohol level of 0.181 grams per deciliter. Dr.Rohrscheib testified that "serum is that fraction of the blood[,]when spun down in an old[-]fashion[ed] centrifuge, [that] isdevoid of all the cellular material and debris, so it's thatportion of the blood after you've subtracted all the white cellsand red cells." He stated whole blood is serum plus the cellularcomponent put back in. He postulated that serum is probably"very close" to whole blood, within 10% and 20% when comparedwith whole blood. Dr. Rohrscheib stated serum-blood results areconverted into whole-blood results by multiplying the serum valueby a conversion factor "between 80 and 90 percent." He stated a60% difference between serum blood and whole blood would be"impossible." Dr. Rohrscheib opined that the value of 0.181 inthis case, when converted to a whole-blood value, "might dropbetween 10 and 20 percent." He also stated there was no onestandard conversion table rate but many that are all within arange of 10% to 20%. No tests analyzing defendant's whole bloodwere performed at the hospital.

After the State rested its case, defense counsel calledThomas Burr, a forensic scientist. He indicated he had studiedthe testing of whole blood and serum blood with reference toalcohol content. Burr testified there is no established conversion table for converting a serum-alcohol result to a whole-blood-alcohol result. He stated the standard determining impairment is 0.08 grams per 100 milliliters of whole blood, but thereis no standard for serum blood. Burr stated the serum measurement can range 3% to 60% higher than the whole-blood-alcoholconcentration, although the average is between 10% and 20%. Ifthe difference amounted to 60%, Burr calculated a serum-alcohollevel in this case would convert to a whole-blood-alcohol levelof 0.07.

Following closing arguments, the jury found defendantguilty on the charge of driving under the influence of alcoholwith a blood-alcohol content of 0.08 or more. In February 2001,defendant filed a motion for new trial or for judgment of acquittal notwithstanding the verdict, which the trial court denied. Thereafter, the trial court sentenced defendant to 30 days injail, 18 months' probation, imposed over $600 in fines, andordered defendant to attend a victim-impact panel and completeany recommended treatment. This appeal followed.

II. ANALYSIS

Defendant argues the State's use of the serum-alcohol

test results failed to establish the alcohol concentration in hisblood was 0.08 or more based upon the definition of "blood" undersection 11-501.2 of the Illinois Vehicle Code (Vehicle Code) (625ILCS 5/11-501.2 (West 2000)). We disagree.

It is the responsibility of the trier of fact todetermine the credibility of witnesses and the weight given totheir testimony, to resolve conflicts in the evidence, and todraw reasonable inferences from that evidence. People v. Ortiz,196 Ill. 2d 236, 259, 752 N.E.2d 410, 425 (2001). When reviewinga challenge to the sufficiency of the evidence in a criminalcase, the relevant inquiry is whether, when viewing the evidencein the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of thecrime beyond a reasonable doubt. People v. Brown, 169 Ill. 2d132, 152, 661 N.E.2d 287, 296 (1996).

A person can be convicted of driving while under theinfluence of alcohol if "the alcohol concentration in the person's blood or breath is 0.08 or more based on the definition ofblood and breath units in [s]ection 11-501.2." 625 ILCS 5/11-501(a)(1) (West 2000). Section 11-501.2 of the Vehicle Codeprovides, in part:

"[E]vidence of the concentration of alcohol,other drug or drugs, or intoxicating compoundor compounds, or any combination thereof in aperson's blood or breath at the time alleged,as determined by analysis of the person'sblood, urine, breath[,] or other bodily substance, shall be admissible." 625 ILCS 5/11-501.2(a) (West 2000)

Section 11-501.2(a)(5) also provides:

"Alcohol concentration shall mean eithergrams of alcohol per 100 milliliters of bloodor grams of alcohol per 210 liters ofbreath." 625 ILCS 5/11-501.2(a)(5) (West2000).

In People v. Menssen, 263 Ill. App. 3d 946, 947, 636N.E.2d 1101, 1102 (1994), a jury convicted the defendant ofdriving under the influence of alcohol. On appeal, the defendantargued, inter alia, that the trial court erred in admittingserum-alcohol test results into evidence. Menssen, 263 Ill. App.3d at 948, 636 N.E.2d at 1106. This court held section 11-501.2(a) of the Vehicle Code permitted serum-alcohol test results. Menssen, 263 Ill. App. 3d at 953, 636 N.E.2d at 1106. The defendant also questioned the reliability of such results. Menssen, 263 Ill. App. 3d at 953, 636 N.E.2d at 1106. This courtdisagreed and stated:

"Two doctors testified that the serum testresults could predictably be anywhere from12% to 20% higher than the blood-alcoholtest. A simple mathematical calculationwould show that translating the serum-alcoholresults to blood-alcohol level still placesdefendant in a state of intoxication." Menssen, 263 Ill. App. 3d at 953, 636 N.E.2dat 1106.

Other courts have allowed experts to testify as to a defendant'sserum-alcohol levels. See People v. Rushton, 254 Ill. App. 3d156, 161-62, 626 N.E.2d 1378, 1384 (1993); People v. Ethridge,243 Ill. App. 3d 446, 458-59, 610 N.E.2d 1305, 1312-13 (1993); People v. Allan, 231 Ill. App. 3d 447, 452-53, 595 N.E.2d 1317,1322-23 (1992).

In People v. Thoman, 329 Ill. App. 3d 1216, 1217, 770N.E.2d 228, 229 (2002), a jury convicted the defendant of drivingwith a blood-alcohol concentration of 0.08 or more in violationof section 11-501(a)(1) of the Vehicle Code (625 ILCS 5/11-501(a)(1) (West 2000)). In that case, the defendant was involvedin an accident and transported to the hospital, where standardprocedure included alcohol analysis based on his blood serumrather than whole blood. Thoman, 329 Ill. App. 3d at 1218, 770N.E.2d at 230. At trial, no evidence was presented regarding thealcohol content in the defendant's whole blood or how serum-alcohol results related to whole-blood results. Thoman, 329 Ill.App. 3d at 1218, 770 N.E.2d at 230. The defendant argued onappeal the State failed to prove his guilt beyond a reasonabledoubt by not presenting evidence that his whole-blood-alcoholconcentration was 0.08 or more. Thoman, 329 Ill. App. 3d at1218, 770 N.E.2d at 230.

The Fifth District, explaining the difference betweenblood serum and whole blood, noted blood-serum results areadmissible at trial, but the State must prove beyond a reasonabledoubt the defendant's whole-blood-alcohol concentration amountedto 0.08 or more. Thoman, 329 Ill. App. 3d at 1218, 770 N.E.2d at230. "Evidence of a defendant's whole[-]blood[-]alcohol concentration level may stem from actual whole[-]blood[-]alcoholconcentration test results or from blood serum[-]alcohol concentration test results converted into whole blood equivalents." Thoman, 329 Ill. App. 3d at 1218, 770 N.E.2d at 230. The appellate court found the State failed to present either type ofevidence but only offered the defendant's blood serum-alcoholconcentration test result. Thoman, 329 Ill. App. 3d at 1219, 770N.E.2d at 231. The lack of evidence before the jury concerning aconversion factor through expert testimony required reversal ofthe defendant's conviction. Thoman, 329 Ill. App. 3d at 1220,770 N.E.2d at 231-32.

In the case sub judice, the jury was confronted withconflicting evidence as to the conversion of serum-alcoholresults to whole-blood equivalents. However, the jury has theresponsibility to resolve conflicts in the evidence and drawreasonable inferences therefrom. Dr. Rohrscheib testified to thevariation between serum blood and whole blood and noted a serumvalue, when converted to a whole-blood value, might drop between10% and 20%. His testimony indicated using the conversion factorin this case would lead to a whole-blood value above 0.08 gramsof alcohol per 100 milliliters of blood. He disagreed thedifference between the values could be as much as 60%. While heagreed a change by 60% was feasible, it would be unusual to findin the normal population. Burr testified the average differencebetween serum- and whole-blood levels is around 10% to 20%, butthe difference can cover a range from 3% to 60%. The jury wasentitled to weigh the testimony presented by the medical technologist, the general surgeon, and defendant's expert witness. Theevidence included details on a conversion factor, and the jury'sapparent reliance on Dr. Rohrscheib's 10% to 20% differencebetween the value of serum blood and whole blood still allowedfor a finding that defendant's blood-alcohol level was 0.08 ormore. When viewing the evidence in the light most favorable tothe prosecution, a rational jury could have found the essentialelements of driving with a blood-alcohol concentration of 0.08 ormore beyond a reasonable doubt.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

STEIGMANN and APPLETON, JJ., concur.